DGtek Fibre Network

DGTek Pty Ltd Master Services Agreement (RSP)

1. Agreement

1.1 Nature of this Agreement
  1. (a) This Agreement comprises these Master Services Agreement terms and conditions, the Service Schedule(s), the Order Form(s), and any addendums agreed by the parties (collectively, the Agreement).
  2. (b) This Agreement establishes a framework under which DGTek has agreed that DGTek will provide and that the Customer will receive certain Services that the Customer can re-supply to its End Users, as set out in each relevant Order Form entered into by the Parties under this Agreement.
  3. (c) The scope of the Services which will be provided by DGTek to the Customer (and any relevant End User) will be agreed upon and documented in each relevant Order Form.
1.2 Order of Precedence
(a) In the event of any inconsistency between the documents that form this
Agreement, then the following will prevail in descending order of precedence:
  1. (i) the Order Form;
  2. (ii) the relevant Service Schedule;
  3. (iii) the terms of this Agreement; and
  4. (iv) any other document or addendum incorporated by reference in this Agreement that the parties expressly agree will form part of the Agreement.
1.3 Ordering
  1. (a) The Customer may request one or more Services at any time from DGTek for the purposes of re-supplying the Services to its End Users by submitting one or more Order Forms to DGTek. By submitting an Order Form, the Customer agrees to be bound by the terms of this Agreement and agrees to enter into a suitable End User Contract with the End User.
  2. (b) DGTek may accept or reject an Order Form in its sole discretion.
  3. (c) The Services under an Order Form will be effective from the Service Commencement Date of the applicable Order Form, and continue for a minimum Service Term.

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  1. (d) the Customer must provision or set up the applicable End User onto the Network in accordance with the procedures notified by DGTek to the Customer, from time to time.
  2. (e) The Customer warrants that it will comply with all applicable Telecommunications Legislation and regulatory requirements relating to the resupply to End Users.
2. DGTek’s Obligations
2.1 Services
In consideration for payment of the Charges, DGTek will:
  1. (a) supply the Services to the Customer in accordance with the terms of this Agreement and the relevant Order Form for the purposes of the Customer re- supplying or re-selling the Services to its End Users;
  2. (b) supply the Hardware to the Customer for the purpose of the Customer re- supplying or re-selling the Hardware to its End Users (including under a Hardware Finance Agreement);
  3. (c) use reasonable endeavours to: (i) commence the provision of the Services by the Order Form Commencement Date; and/or (ii) deliver the Hardware to the Customer by the delivery date; and
  4. (d) DGTek will not be liable for any delays in the delivery of Hardware, or installation of Services including, but not limited to, delays in obtaining access to any property or premises.
2.2 Variation to Services
  1. (a) DGTek or the Customer may request a variation to the Services from time to time by providing the other party with a written notice (including by way of an email) specifying the requested changes in the Services or Hardware, including a request to modify, change, upgrade or enhance the Network or any other technology, software or Hardware that DGTek uses to provide a Service, provided that the Service continues to substantially comply with this Agreement.
  2. (b) Upon mutual agreement by both parties of the extent and nature of the changes, including any changes to the Charges, DGTek will provide the Customer with a Change Order. Once executed, the Change Order will vary the applicable Order Form for the remainder of the Service Term.
2.3 Regulatory – general (a) DGTek must:
  1. (i) to the extent within its control, obtain and maintain all Authorisations necessary to construct the Network and otherwise to provide each Service to the Customer for the Service Term;
  2. (ii) do all things necessary in respect of the Network, including the performance of DGTek’s obligations as a Telecommunications provider, which are required to be done under the Telecommunications Act or as otherwise required by law; and
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(iii) (b)
(a) (b)
provide all reasonable assistance and information reasonably requested by the Customer in order for the Customer to comply with the Customer's obligations under this Agreement.
the Customer acknowledges that DGTek may intercept, without any prior or subsequent notification to the Customer, communications carried over the Service in order to meet any lawful request or direction of a law enforcement or other agency which has the power to require interception and the Customer agrees to provide all reasonable assistance to DGTek in respect of DGTek’s obligation to intercept communications.
The Customer warrants that the Customer will include a provision in all End User Contracts providing DGTek the right to for DGTek to meet its regulatory or legislative obligations under clause 2.3(b).
Service Levels
DGTek will use reasonable endeavours to provide the Services in accordance with the Service Levels.
The Customer acknowledges that any rebates available to the Customer for DGTek’s failure to meet the Service Level Agreements are subject to the Customer meeting the conditions specified in the relevant Service Schedule, and to the extent permitted at Law, is the Customer’s sole remedy. For the avoidance of doubt, the Customer waives the right to any additional remedies, and acknowledges that a failure of a Service Level by DGTek is not a material breach of this Agreement.
Third Parties:
Where DGTek uses any Third Party(ies) in the provision of Services to the Customer, the Customer agrees to be bound by the Third Party’s terms and conditions which will be made available to the Customer upon request. DGTek will not be liable to the Customer for any loss and damage incurred by the Customer in connection with the Third Party(ies) Services or the Third Party terms.
DGTek (or its Third Parties) may perform scheduled and unscheduled maintenance or perform updates in relation to the Service from time to time. DGTek will use reasonable efforts to provide the Customer notice before undertaking any scheduled maintenance and to perform all scheduled maintenance at times likely to minimise interference to the Customer.
The Customer’s Obligations
General obligations
the Customer must:
(i) comply with all reasonable requests made by DGTek in relation to a Service or the Network;
(ii) relinquish a Service at such times as DGTek may reasonably require to permit DGTek or another person to carry out any tests and adjustments that
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(i) interfere with any of the facilities comprising the Network or any Services or facilities or persons providing maintenance to the Network; or
(ii) impair privacy of any communications over those facilities, other than to comply with the Customer's statutory obligations.
may be necessary for that Service to be provided efficiently and for the Network to be maintained in efficient working order;
  1. (iii) obtain and maintain all Authorisations required for the Customer to enter into this Agreement, use the Services and perform the Customer obligations under this Agreement;
  2. (iv) provideallassistanceandinformationreasonablyrequiredbyDGTekinorder for DGTek to comply with its obligations under this Agreement;
  3. (v) comply with all Laws;
  4. (vi) notify DGTek immediately on becoming aware of any unlawful use of a Service or the Network;
  5. (vii) use best endeavours to the extent reasonably within the Customer's control to obtain and maintain all necessary approvals for DGTek to enter all premises or land required for the installation, delivery and maintenance of a Service;
(viii)not interfere with, damage or create hazards for:
(A)all or part of any Service;
(B)any of the facilities, including the Network, by which the Service is provided, or
(C)persons providing maintenance to those facilities;
(ix) not use or allow End Users to use a Service for any purpose that may:
(A)impair the privacy of any communications over the Service;
(B)infringe any person’s rights, including intellectual property rights, or defame any person; or
(C)infringe a law, regulatory standard, or mandatory code or instrument, or constitute the commission of an offence, other than to comply with the Customer's statutory obligations.
the Customer must use best endeavours to ensure that the Customer use of the
Services and any Customer Hardware used by the Customer in connection with that use, will not:
Hardware at the Customer’s own expense.
the Customer is responsible for installing and maintaining any relevant Customer
(b) the Customer must ensure that any Customer Hardware:
  1. (i) complies with all applicable regulatory standards and all applicable laws;
  2. (ii) is approved by DGTek; and
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(iii) is capable of interoperating with the Services and does not damage or adversely affect the Network.
(c) If the Customer Hardware causes interference with the Services or the Network, DGTek may require the Customer to stop using the Services and disconnect the Customer Hardware until the issue has been rectified.
(d) the Customer authorises DGTek and any of its personnel to disconnect, install or make changes to any Customer Hardware at the Customer site for DGTek to provide the Services.
(e) the Customer will use best endeavours to the extent reasonably within the Customer’s control to obtain and maintain all necessary approvals for DGTek to enter all premises or land required for the installation, delivery, and maintenance of the Hardware.
(f) Purchasing Hardware: where the Customer purchases Hardware from DGTek:
(i) the risk of loss and damage will transfer to the Customer when the purchased Hardware leaves DGTek’s warehouse facility or site;
(ii) the title and ownership of the purchased Hardware will transfer to the Customer on payment of all Charges in cleared funds.
(g) For the avoidance of doubt, unless the Customer has purchased the Hardware pursuant to this clause 3.2, DGTek’s provision of a Service to the Customer does not give the Customer any ownership or other property rights in the Network or DGTek Hardware.
3.3 End Users
The Customer is:
(a) responsible for all aspects of the Customer provision of services to End Users, including dealing with End User fault reports or other complaints or enquiries and billing and collection;
(b) responsible for complying with all applicable laws and regulatory obligations in supplying the Customer services and dealing with End Users;
(c) not permitted to make any representation or provide any warranties or undertakings as to the Services or the Network or any other matter on behalf of DGTek to End Users, except as expressly authorised by DGTek; and
(d) not granted any authority to act on DGTek’s behalf in any capacity, or to incur any liability on DGTek’s behalf.
(e) Responsible for including terms in its End User Contracts that:
  1. (i) Allows an assignment or novation of all or part of its rights and obligations under the End User Contract to DGTek (or a corporation nominated by DGTek) at any time, by notice to the End User; and
  2. (ii) requires the End User to agree that, with effect from the date of the notice, the End User Contract is cancelled, and a new agreement is created on the same terms as the End User Contract except that:
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  1. (A) DGTek replaces the Customer in any capacity under the End User Contract as if DGTek was a party to the End User Contract instead of the Customer; and
  2. (B) neither DGTek nor the End User has any obligations or liability to the other under the End User Contract before the date of the notice.
3.4 Intellectual Property
(a) Any Intellectual Property owned by either party prior to entry into this Agreement, or developed independently of this Agreement by either party, will continue to be owned by that party.
(b) DGTek either owns the Intellectual Property in the Service provided to the Customer or, where DGTek uses any Intellectual Property belonging to a Third Party, DGTek has a licence to do so.
(c) None of DGTek’s Intellectual Property is transferred to the Customer and, unless specifically authorised by this Agreement, the Customer cannot and will not use or reproduce such Intellectual Property for any purpose outside of this Agreement.
(d) All Intellectual Property in any improvements or changes to any Service devised or made by anyone during the term of this Agreement will belong to DGTek.
4. Charges
4.1 Charges and payment
DGTek will invoice the Customer: (i) in advance for the Establishment Fees and the Charges at the start of each calendar month during the Service Term; and / or (ii) for a previous month where the Customer has not been invoiced. The Customer must pay the Charges in each invoice by the due date on the relevant invoice or, if no due date is specified, within 30 Business Days of the invoice date. Payments must be made by electronic transfer to an account nominated by DGTek.
4.2 Interest/ Fees on unpaid amounts
Where there is an amount payable by the Customer under this Agreement (including interest) which is not paid when due (other than an amount withheld in accordance with clause 4.3(b)) will entitle DGTek to: (i) charge interest from (and including) the due date until (but excluding) the date of actual payment; and (ii) recover reasonable expenses and costs incurred in enforcing any failure or delay in the late payment; and (iii) suspend the provision of the Service in accordance with clause 9.4 below.
4.3 Disputed invoices
(a) the Customer acknowledges that DGTek’s records of the Service supplied are
prima facie evidence that the Service was supplied to the Customer.
(b) If the Customer wishes to dispute the whole or any part of an amount stated to be payable by the Customer in an invoice provided under clause 4.1, the Customer must, prior to the due date of the invoice, notify DGTek that a dispute has arisen. The provisions of clause 13.1 will apply to any disputed invoices. The due date for payment of any amount withheld by the Customer under this clause 4.3 shall be the Business Day following the resolution of the dispute.
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4.4 Variation of Charges
  1. (a) DGTek may vary the Charges on 30 Business Days’ notice to the Customer.
  2. (b) DGTek may re-issue an invoice at any time during the Service Term if a billing
or invoice error (howsoever caused) is discovered in the future.
(c) Fee Review. DGTek may, no more than annually on or after the anniversary of the Commencement Date, review and by written notice increase the Charges payable for the Service supplied under this Agreement.
5. Taxes
5.1 Charges exclusive of Taxes
All charges for the Services are exclusive of applicable Taxes and Regulatory Fees. DGTek is entitled to add to the amount otherwise payable an additional amount for the applicable Taxes and Regulatory Fees.
5.2 No deductions for withholding Tax
If a party must deduct or withhold Tax from a payment to the other under this Agreement, it must make that deduction or withholding (or both), and increase its payment to the other party to an amount that will result in that other party receiving the full amount which would have been received if no deduction or withholding had been required.
6. Insurance
6.1 Public liability cover
Each party must effect and maintain, during the term of this Agreement, a valid and enforceable public and product liability insurance policy for an insured amount of at least $20,000,000 per occurrence and in the aggregate for all Claims.
6.2 Workers’ compensation cover
Each party must effect and maintain, during the term of this Agreement, a valid and enforceable workers’ compensation insurance policy that provides cover for its employees and contractors and complies with each jurisdiction’s legislated requirements.
7. Exclusion of Warranties
7.1 Each party acknowledges that:
(a) it has relied on its own enquiries in respect of all matters relating to this Agreement and has not relied on any representation, warranty, condition or statement made by or on behalf of the other party other than as set out in this Agreement; and
(b) any conditions or warranties which may otherwise be implied by law into this Agreement are expressly excluded to the extent permitted by law,
and each party releases the other party from all Claims and liability (whether or not known) which it may have or claim to have, or but for this release, it might have had
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against the other party arising out of any representation, warranty, covenant or provision not set out or referred to in this Agreement.
8. Indemnity and Liability 8.1 No indirect loss
Neither party is liable to the other for any Consequential Loss however caused in connection with or related to this Agreement or otherwise in respect of the Services.
8.2 No warranty
DGTek excludes all conditions and warranties implied into this Agreement and limits its liability for any non-excludable conditions and warranties, where permitted to do so by law, to (at DGTek’s option):
  1. (a) repairing or replacing the relevant goods;
  2. (b) resupplying the relevant or equivalent services; or
  3. (c) in either case, paying the Customer the cost of doing so.
8.3 Limitation of DGTek’s liability
To the extent permitted by Law, DGTek:
(a) excludes liability for any and all Loss suffered or incurred by the Customer in connection with a Force Majeure Event; and
(b) limits its maximum, aggregate liability for Loss for all Claims in connection with a Service to an amount equal to twelve (12) months of Charges paid by the Customer preceding the Claim.
8.4 Indemnity
(a) The Customer indemnifies DGTek from and against any Loss suffered or incurred by DGTek in connection with a Claim, including in connection with the termination of any Service, by an End User.
(b) the Customer is responsible for the content of any transmission using the Service and the Customer indemnifies DGTek from and against any Loss suffered or incurred by DGTek in connection with a Claim relating to any content, data or other signal transmitted using the Service (including any transmission made by an End User). This clause 8.4 does not apply to any transmission made by DGTek or its employees or subcontractors (for example, when testing the Service).
(c) the Customer's liability to indemnify DGTek under this clause 8.4 shall be reduced proportionately to the extent that any act or omission of DGTek contributed to the Loss.
8.5 Mitigation
Each party must take all reasonable steps to minimise the Loss it has suffered or is
likely to suffer as a result of the event giving rise to an indemnity under that clause.
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9. Term, Termination and Suspension 9.1 Term
(a) This Agreement begins on the execution date and continues until terminated by prior written notice to the other party.
(b) Subject to the termination provisions in this Agreement, an Order Form commences on the Services Commencement Date and remains in force for the Service Term.
(c) On the expiration of the Service Term, the Order Form will continue on a month- to-month basis until terminated by either party giving the other not less than 20 Business Days’ written notice of termination.
9.2 Termination by DGtek
(a) DGTek may terminate a Service with immediate effect by giving notice to the
Customer if the Customer:
(i) Breach a material provision of this Agreement, including failing to pay an amount when due under this Agreement, and do not, within 20 Business Days of being requested to do so by notice from DGTek, remedy that breach or failure.
(ii) Suffer an Insolvency Event, and the Customer financiers do not, within 5 Business Days of being requested to do so by written notice, cause the Customer obligations to continue to be performed.
(b) If DGtek terminates a Service pursuant to this clause Error! Reference source not found. before the end of the Service Term, then without limiting DGTek’s other legal rights and remedies, the Customer will be required to pay the Early Termination Charge.
(c) Where DGTek terminates this Agreement for cause pursuant to this clause 9.2, then the Customer must, if required by DGTek, immediately:
  1. (i) Novate all of its End User Contracts to DGTek; and
  2. (ii) Provide DGTek with all End User details and the information requested by DGTek
to DGTek to provide the Services and invoice, the End Users.
9.3 Termination by the Customer
(a) the Customer may terminate a Service by providing DGTek with prior written notice if DGTek breaches a material provision of this Agreement and does not, within thirty (30) Business Days, remedy that breach.
(b) Subject to clause 9.3(a), if the Service(s) are terminated by the Customer before the end of the Service Term, then without limiting DGTek’s legal rights and remedies, the Customer will be required to pay DGTek the Early Termination Charge within 10 Business Days.
9.4 Suspension
(a) DGTek may, without liability to the Customer, immediately cease supplying a
Service if:
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(i) the Customer or an End User has materially breached a provision of this Agreement, and the Customer has not remedied it within 10 Business Days of being requested to do so;
(ii) DGTek reasonably believes it is necessary to do so to comply with any Law, or regulatory standard; or
(iii) to prevent the Customer, or an End User, from breaching any Law, regulatory standard or mandatory code or instrument, infringing another person’s rights, defaming another person, or impairing the privacy of communications over a Service other than to comply with the Customer statutory obligations.
(b) DGTek will, as soon as practicable, recommence the supply of a suspended Service after the Customer has rectified the matter leading to the suspension.
(c) The Customer agrees to pay the costs of suspension and recommencing the supply of the Service.
9.5 Without prejudice
Termination of a Service will be without prejudice to any accrued rights or remedies of
either party.
9.6 Post-Termination Obligations
(a) If a particular Order Form is terminated (in whole or in part), then this Agreement (including any other Order Forms) will be unaffected and both Parties must continue to perform their obligations in accordance with the relevant terms.
(b) On termination or expiration of this Agreement or an Order Form (in whole or in part), both parties must promptly return (or at the request or with the consent of the other party, destroy) all Confidential Information (including Personal Information) in its possession or control, and any Hardware not fully paid for.
(c) Where this Agreement or an Order Form is terminated other than by cause by the Customer pursuant to clause 9.3, the Customer must pay to DGTek all Charges that are due and payable, including all overdue Charges and any Early Termination Payments.
(d) At the termination or expiration of the Service Term, DGTek will immediately cease to provide the Services to the Customer and the End Users; and cease to allow the Customer access to or use of the Network.
10. Force Majeure
10.1 Suspected Force Majeure Event
If either party reasonably suspects that a Force Majeure Event may arise and prevent or hinder the performance of that party’s contractual obligation, it must notify the other party immediately. The parties must then work together in good faith to resolve the issues, with the aim of avoiding the occurrence of the Force Majeure Event.
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10.2 Occurrence of a Force Majeure Event
(a) If a Force Majeure Event prevents or hinders performance of a party’s contractual obligations (Affected Party), then the Affected Party must notify the other party within 10 Business Days of becoming aware of the Force Majeure Event, giving full details of:
  1. (i) the Force Majeure Event;
  2. (ii) the obligations that are affected and the extent to which the Affected Party is
reasonably unable to perform those obligations;
(iii) the expected duration of any delay arising directly out of the Force Majeure Event; and
(iv) where possible, a proposal for avoiding the impact of the Force Majeure Event.
(b) To the extent possible, the Affected Party must use its best endeavours to rectify or alleviate the effect of the Force Majeure Event.
(c) For the duration of any Force Majeure Event, the parties will use and will continue to use their best endeavours to minimise the impact of any Force Majeure Event.
(d) Upon the cessation of the delay or failure resulting from the Force Majeure Event the Affected Party must promptly notify the other party of the cessation.
(e) Any obligations outstanding shall be fulfilled by the Affected Party as soon as reasonably possible after the Force Majeure Event has ended, except to the extent that such fulfilment is no longer possible or is not required by the party to whom the obligations are owed.
11. Confidentiality
11.1 Confidential Information
Each party agrees in relation to the Confidential Information of the other party:
  1. (a) to keep confidential the Confidential Information;
  2. (b) to use the Confidential Information solely for the purposes of the performance
of its obligations and the exercise of its rights under this Agreement; and
(c) to disclose the Confidential Information only to those of its employees, advisors, related entities and shareholders who have a need to know (and only to the extent each has a need to know) and who are aware and agree that the Confidential Information must be kept confidential.
11.2 Exceptions
The obligations of confidentiality under this Agreement do not extend to information
which (whether before or after this Agreement comes into force):
(a) is disclosed to a party under this Agreement, but at the time of disclosure is rightly known to that party and not subject to an obligation of confidentiality on that party;
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(b) at the time of disclosure is within the public domain or after disclosure comes into the public domain other than by a breach or breaches of any obligation under clause 11.1; or
(c) is required by law or the rules of any securities exchange to be disclosed and the party required to make the disclosure ensures that information is disclosed only to the extent required.
11.3 Existing confidentiality obligations
The obligations of confidentiality under this Agreement are in addition to, and not in substitution for the confidentiality obligations of the parties under any specific non- disclosure agreements between the parties relating to the subject matter of this Agreement.
11.4 Customer Information
(a) Each party agrees to handle Personal Information obtained from the other party
in accordance with the Privacy Laws.
(b) Subject to the Customer’s consent, DGTek will not use Customer Information for any purpose other than the purposes permitted under applicable law.
(c) By entering into this Agreement, the Customer expressly consents to the use of Customer Information for the purposes of administering, billing, providing and provisioning for any Service; Network and Service enhancement, security and risk management; to respond to any emergency which threatens life or property; or otherwise in accordance with DGTek’s privacy policy.
(d) the Customer may give the Customer consent to the use of Customer Information for other purposes by any form of writing or by the Customer acceptance of any relevant terms and conditions which refer to such consent. the Customer may withdraw the Customer consent to the use of Customer Information by giving us written notice.
(e) The Customer acknowledges that DGTek may use Customer Information or Personal Information, in whatever form, which:
  1. (i) Relates to an End User; and
  2. (ii) Is in DGTek’s power, possession or control,
For the purposes of DGTek complying with its obligations, and exercising its rights, under this Agreement.
(a) (b)
Data Breach
If a party becomes aware of a Data Breach, that party will immediately inform the other party and disclose to it all information relating to the Data Breach.
After notification of a Data Breach, the Customer will provide all reasonable assistance to DGTek to:
  1. (i) remedy the Data Breach and prevent further Data Breaches;
  2. (ii) determine whether the Data Breach is an “eligible data breach” for the purposes of the Privacy Laws; and
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(iii) in the event the parties agree that there has been an eligible data breach, prepare any statements and/or notifications within the applicable timeframes required under the Privacy Laws.
(c) Each party will not publicly use or mention the other’s name without that party’s prior written approval.
11.6 Publicity
the Customer consents to DGTek listing the Customer as a customer of DGTek and using the Customer logo in any press release, marketing, sales or securities exchange reporting materials.
12. Dispute resolution
12.1 No arbitration or court proceedings
If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute), a party must comply with this clause 12 before commencing legal proceedings (except for proceedings relating to interlocutory relief).
12.2 Notification
A party claiming a Dispute has arisen must give the other parties to the Dispute notice
setting out details of the Dispute.
12.3 Process
(a) During the 10 Business Days after a notice is given under clause 12.2 (or longer period if the parties to the Dispute agree in writing) (Period), each party to the Dispute must use its reasonable efforts to resolve the Dispute or to agree that the Dispute will be submitted to mediation.
(b) If the parties cannot resolve the Dispute or agree to mediation within that Period, or if there is a submission to mediation, but there is no resolution within 20 Business Days of the submission, or such extended time as the parties may agree in writing before the expiration of the 20 Business Days, either party may commence legal proceedings.
13. General
13.1 Relationship between parties
This Agreement does not create a relationship of employment, agency or partnership between the parties.
13.2 Sub-contracting
DGTek may perform its obligations under this Agreement by procuring a third party to perform them. Arrangements that DGTek may have with a third party will not limit DGTek’s liability to the Customer for the performance of DGTek’s obligations under this Agreement.
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13.3 Assignment
(a) The Customer must not assign or otherwise deal with (or purport to do so) any right or obligation under this Agreement to a third party, including without limitation to an Affiliate, without the prior written consent of DGTek.
(b) DGTek may assign, novate or transfer any of its rights or obligations under this Agreement to any of its Affiliates without the Customer's consent or to a purchaser of the whole or any part of the DGTek business.
13.4 Waiver
The failure of a party at any time to require the performance of any obligation under this Agreement is not a waiver of that party’s right:
(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
(b) at any other time to require performance of that or any other obligation under this Agreement.
13.5 Governing law
This Agreement and any Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual Disputes) shall be governed by and construed in accordance with the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
13.6 Method of service
A notice, consent or communication required to be given under this Agreement must be in writing and in the English language. It must be addressed to each Party in accordance with the details set out in the relevant Order Form, as updated from time to time. It may be personally delivered or sent by facsimile, email, courier or pre-paid post.
13.7 Time of service
A notice given in accordance with clause 13.6 is taken to be received (at the local time in the place of receipt) in accordance with the relevant timeframes specified in the Acts Interpretation Act 1901 (Cth).
13.8 Amendment
DGTek may amend the terms of this Agreement, including as a result of where DGTek is required by a Regulator, by Law or mandated by a third-party Supplier, at any time by providing the Customer with 30 Business Days prior written notice.
13.9 Entire agreement
This Agreement including its schedules and any appendices, annexures or attachments
that constitutes the entire agreement between the parties as to its subject matter.
13.10 Severability
Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity
or unenforceability, without affecting the remaining provisions of this Agreement.
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13.11 Electronic Execution
Each Party consents to the signing of this Agreement by electronic means. The
Parties agree to be legally bound by this Agreement signed in this way.
13.12 Survival
(a) Termination of this Agreement will be without prejudice to any other rights or obligations which may have accrued under this Agreement on or before termination; and
(b) Termination of this Agreement will not affect any provisions that are expressed to or which by their nature survive termination or expiry.
14. Definitions and interpretation
14.1 Defined terms
Affiliate in respect of an entity (the first entity), means another entity that Controls the first entity, that is Controlled by the first entity or that is under common Control with the first entity.
Agreement has the meaning given at clause 1.1.
Authorisations mean all licences, declarations, permits, accreditations and approvals
of any type, including all licences required by a Regulator.
Business Day means a day that is not a Saturday, Sunday or a public holiday in the State or country in which the Service is provided.
Change Order means a document that varies the Order Form in a form substantially similar to Appendix 1 to this Agreement.
Charges means the charges (exclusive of any Taxes) in respect of a Service as set out in the relevant Order Form.
Claim means any claim, action, suit or demand.
Confidential Information of a party means all confidential information given or made available by that party to the other party including all information disclosed to or acquired by one party before or after the date of this Agreement, whether orally, in writing or in electronic or machine-readable form.
Consequential Loss means any form of:
  1. (a) indirect, special, incidental or consequential loss;
  2. (b) loss of or damage to goodwill or reputation; or
  3. (c) loss or corruption of data, loss of profits, loss of revenue, loss or denial of
opportunity, loss of access to markets, loss of anticipated savings and pure economic loss suffered or incurred by any person,
whether arising in contract or tort (including negligence) or under any statute.
Control means possessing a 50% or greater interest in an entity or the right to direct the management of that entity.
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Customer Hardware means all of the hardware used by the Customer in connection with the Services that are not provided by DGTek.
Customer Information means all information that DGTek obtains as a result of the Customer’s or its End User’s use of the Services and may include the Customer, the Customer Affiliates’ and End Users’ Personal Information.
Data Breach means the misuse, loss and unauthorised access, modification and disclosure of Personal Information.
DGTek means DGTek Pty Ltd (ABN: 61 600 896 115) of 15/105 Cochranes Road, Moorabbin Victoria, 3189.
DGTek Hardware means any hardware supplied by DGTek for use in connection with the Services.
Early Termination Payment means an amount equal to the monthly recurring Charges payable for the terminated Service multiplied by the number of months, or part thereof, between the date of termination and the end of the Service Term.
End User means a person who acquires a service that is a resupplied version, or a derived version of the Service supplied to the Customer by DGTek.
End User Contract means the terms and conditions on which the Customer resupplies the Services to End Users, which includes terms that are substantially similar to the terms set out in this Agreement or is otherwise a standard form of agreement formulated under Part 23 of the Telecommunications Act 1997 (Cth).
End User Details means all information about an End User including full name, billing address, street address, public addressing identifiers applicable to the End User’s Service.
End User Charge means the amount payable by End Users for their use of the Services (including any Network charges).
Establishment Fees means the amount payable for DGTek to set up the Services at the start of the Service Term.
Force Majeure Event means a circumstance or event beyond the relevant party’s reasonable control including but not limited to:
(a) acts of god (including rainstorm or hail), accidents, national emergencies, insurrection, riot, hostile or warlike action in peace or war or sabotage;
(b) strikes, lockouts, labour disputes, work stoppages, embargoes or any other labour difficulties (except where undertaken only by employees of that party);
(c) action or inaction of any government, governmental or local authority or agency, civil or military authority or statutory authority (or any of their representatives);
(d) malicious or negligent acts or omissions by a third party.
Hardware means telecommunication hardware or equipment sold by DGTek to the Customer for re-supply to its End User(s), during the Order Form Term, including modems, headsets, VOIP telephones and other equipment.
Hardware Finance Agreement means an agreement between the Customer and DGTek under which:
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  1. (a) DGTEK supplies an item of Hardware to the Customer for re-supply prior to the Customer being required to make full payment to DGTek for this supply;
  2. (b) the agreement is for a specified term; and
  3. (c) during this term, the Customer is required to pay instalments to DGTek.
Intellectual Property means any intellectual or industrial property anywhere in the world including, but not limited to, any registered or unregistered copyright, patent, trade mark, design rights, trade secret or Confidential Information relating to the Services or any licence or other right to use, or to be the registered proprietor of, any of the above.
Insolvency Event means in respect of a party:
(a) a receiver, manager, receiver and manager, trustee, administrator, controller or similar officer is appointed (and is not removed within 15 Business Days) in respect of the party or any asset of the party;
  1. (b) a liquidator or provisional liquidator is appointed in respect of the party;
  2. (c) any application is made to a court (and not withdrawn or refused within 15
Business Days) for an order, or an order is made, or a resolution is passed, for the purpose of:
(i) appointing a person referred to in paragraphs Error! Reference source not found. or Error! Reference source not found.;
  1. (ii) winding up the party; or
  2. (iii) proposing or implementing a scheme of arrangement in respect of the party;
(a) a moratorium of any debts of the party or an official assignment or a composition or an arrangement (formal or informal) with the party’s creditors or any similar proceeding or arrangement by which the assets of the party are subjected conditionally or unconditionally to the control of the party’s creditors is ordered, declared or agreed to, or is applied for (and not withdrawn or refused within 15 Business Days);
(b) the party becomes, or admits in writing that it is, or is declared to be, or is deemed under any applicable law to be, insolvent or unable to pay its debts as they fall due; or
(c) any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of the party.
Interest Rate means the lower rate per annum of:
(a) the sum of the cash rate published by the Reserve Bank of Australia from time
to time and 3% per annum; or
(b) the highest applicable rate permitted by the local courts.
Law means all applicable legislative instruments, including the Privacy Laws, Telecommunications Legislation, and any applicable regulatory requirements in the applicable jurisdiction.
Loss means any loss, cost, expense, liability or damage, howsoever caused, including 3470-7222-4037, v. 1
reasonable legal costs.
Network means the telecommunications network operated by DGTek, its Affiliates or by third parties pursuant to arrangements with DGTek or its Affiliates, and includes any computer, network, terminal or device operated by DGTek.
Order Form means DGTek’s standard order form, which sets out the Service(s) that the Customer has requested and DGTek has agreed to provide.
Service Commencement Date means, unless otherwise specified in the relevant Order Form, the execution date of the Order Form.
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent or can be reasonably ascertained, from the information or opinion.
Privacy Laws means all data protection, privacy legislation, guidelines and industry standards from time to time in force in the jurisdictions in which the Services are provided.
Regulator means any foreign or domestic government or governmental, semi- governmental, administrative, fiscal, regulatory or judicial body, department, commission, authority, tribunal, agency or entity.
Regulatory Fees means fees charged to DGTek by any Regulator.
Service means a telecommunication service that DGTek has agreed to supply to the Customer under this Agreement for the purpose of re-supply to End Users, as specified in an Order Form and described more fully in the Service Schedule.
Service Levels in respect of a Service means the service levels set out in the Service Schedule for that Service.
Service Schedule means a schedule to this Master Service Agreement which can be provided to the Customer upon request that sets out, a description of the Service(s), technical information, any applicable Service Levels and any other relevant information.
Service Term in respect of a Service, means the minimum term for provision of that Service as set out in the relevant Order Form.
Tax means all applicable VAT, GST, consumption tax, use, excise, access, bypass, franchise, regulatory or other similar taxes, fees, charges or surcharges that are imposed on or based on the provision, sale or use of the Services but excluding taxes based on its net income.
Telecommunications Legislation means all telecommunications legislation, regulations, guidelines and industry standards applicable to the provision of the Services including the Telecommunications Act 1997 (Cth) and the Telecommunications (Consumer Protection and Service Standards Act 1999 (Cth) in force in the jurisdictions in which the Services are provided.
Third Party means a person other than DGTek or its Affiliates (and their respective officers, employees, agents and subcontractors), and includes DGTek’s suppliers and vendors.
Training means any training in connection with DGTek’s Network as set out in an Order Form.
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1.2 Interpretation
In this Agreement, headings are for ease of reference only and do not affect the
meaning of this Agreement and unless the contrary intention appears:
(a) the singular includes the plural and vice versa and words importing a gender include other genders;
(b) other grammatical forms of defined words or expressions have corresponding meanings;
(c) a reference to a clause, paragraph, schedule, appendix or attachment is a reference to a clause or paragraph of, or schedule or appendix or attachment to, this Agreement and a reference to this Agreement includes any schedules and attachments;
(d) a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(e) a reference to ‘dollar’ or ‘$’ is a reference to the lawful currency of the country in which the Service is provided;
(f) a reference to a specific time for the performance of an obligation is a reference to that time in the state, territory, country or other place where that obligation is to be performed;
  1. (g) a reference to a person includes its successors and permitted assigns;
  2. (h) words and expressions importing natural persons include partnerships, bodies
corporate, associations, governments and governmental and local authorities and agencies; and
(i) mentioning anything after ‘include’, ‘includes’ or ‘including’ does not limit anything else that might be included.
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Order Form Number
Service Changes Revised Fees Misc.
Appendix 1
Change Order Template
Effective Date of Change Order
Revised Service Term

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